Amar Nath vs IXth Addl. District and Sessions Judge and Others

S.R. Singh, J.—This writ petition is directed against the orders dated 10.4.1996, 29.5.1990 and 30.8.1990 passed by the appellate authority and the order dated 5.10.1982 passed by the Prescribed Authority. By order dated 10.4.1996, the appellate authority dismissed the appeal preferred u/s 22 of the U.P. Act No. XIII of 1972 against the order dated 5.10.1982 passed by the Prescribed Authority in favour of the Respondent landlords in proceedings u/s 21(1)(a) of the said Act. By order dated 29.5.1990 the appellate authority rejected the applications 10C and 22C moved on behalf of the Petitioner. It may be noted that by means of the application 10C, the Petitioner wanted to bring on record an additional fact through an affidavit stating therein that the Respondent-landlords have got a business in the name and style of M/s. Hindustan Charmkala Utpadan Sahkari Samiti Ltd. at Charbagh, Agra of which Prithvi Raj Sikka, Indra Prakash Sikka and Shanti Prakash Sikka were directors and Vidya Sagar Sikka was its Managing Director and, therefore, their requirement for the premises in question could not be said to be bona fide. The application 22C was filed by the Petitioner u/s 34 of the Act read with Rule 22 of the Rules made under the Act for cross-examining Shanti Prakash Sikka on the facts stated by him in his affidavit filed in opposition to the application 10C. Similarly order dated 30.8.1990 was passed by the appellate authority on the application 29C dated 23.8.1990 moved by the Petitioner with a prayer that in term of earlier order passed by the High Court, he may be given full opportunity to lead evidence on the points remitted for decision by the High Court vide judgment and order dated 22.8.1988. It may be pertinent to observe here that the order dated 30.8.1990 was challenged by the Petitioner in Writ Petition No. 258 of 1990, but the same was dismissed on the ground that the Petitioner could agitate the legality of the order while challenging the final order passed in appeal.

As noted above the application for release moved u/s 21(1)(a) of the Act was allowed by the Prescribed Authority vide order dated 5.10.1982. The appeal preferred against the said order having been dismissed vide judgment and order dated 8.11.1985 the matter was brought to this Court by means of a writ petition being Writ Petition No. 17884 of 1988 Amar Nath v. IVth Additional District Judge, Agra and Ors. The said writ petition was allowed and the appellate order dated 8.11.1985 quashed and the matter was remitted back to the appellate authority for deciding the question of comparative hardship in accordance with law taking into consideration the observations made in the judgment expeditiously at a very early date "after giving full opportunity to the parties." A perusal of the judgment would indicate that in the opinion of the learned Judge, following two points required reconsideration:

(i) In view of the fact that the tenant-Petitioner is carrying on his business for 13 long years in the shop, the question of comparative hardship should be reassessed and, therefore, a clear finding be recorded.

(ii) On the basis of material on record, whether it is possible for the landlords to start their business in the first floor instead of disturbing the shoe business of the tenant-Petitioner on the ground floor.

It was pursuant to the aforesaid direction given by the High Court that the matter was heard by the appellate authority on the points enumerated in the High Court''s judgment and upon reconsideration the order passed by the Prescribed Authority was again maintained vide order dated 10.4.1996.

Learned Counsel for the Petitioner--Sri Yatindra Singh and Sri R. S. Maurya vehemently urged that the appellate order passed earlier on 8.11.1985 having been quashed by the High Court, entire controversy between the parties including the one relating to bona fide need of the landlord stood reopened and the appellate authority erred in confining itself to the question of comparative hardship only. Submission made by the learned Counsel for the Petitioner is loaded with merits. A reading of the High Court''s judgment dated 22.8.1988 would indicate that the matter was remitted to the appellate authority seemingly for reconsideration only on the points specifically enumerated in the judgment. However, the question of comparative hardship and the question whether it was feasible for the landlords to start their business in the first floor instead of disturbing the shoe business of the tenant-Petitioner on the ground floor formulated by the High Court are, in my opinion, inter-woven with the question of bonafide need of the landlords and cannot be taken in isolation.

In M.M. Quasim Vs. Manohar Lal Sharma and others, , the Hon''ble Supreme Court was concerned with Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 which provides for eviction of tenants, inter alia, on the ground that the building is "reasonably" and in "good faith" required by the landlord for his occupation or for the occupation of any person for whose benefit the building was held by the landlord. Dealing with the question whether it was for the landlords to decide which of the alternative accommodation could be suitable for them, a three-Judge Bench of the Hon''ble Supreme Court was pleased to observe as under:

...The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need for his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison dletor of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord''s claim but in such a situation the court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which action is commenced in the court.... The court must understand and appreciate the relationship between legal rules and one of necessities of life-shelter--and the way in which one part of the society exacts tribute from another for permission to inhibit a portion of globe....

True, the High Court in its earlier judgment dated 22.8.1988 did not specifically require the appellate authority to go into the question of bona fide need, but the questions formulated by it, particularly the question No. (ii) did have a direct bearing on the question of bona fide need of the landlord for in the event of the first floor accommodation available with the landlords being found suitable for them to start their business, element of need for the premises in dispute situate on the ground floor would become non-existent. The appellate court was, therefore, not right in holding that it could not go into the question of bona fide need in view of the High Court''s judgment dated 22.8.1988. It is true that in Mrs. Meenal Eknath Kshirsagar Vs. M/s. Traders and Agencies and another, , reliance on which was placed by the learned Counsel for the Respondents--Sri Swami Dayal assisted by Sri Madhav Jain, a two-Judge Bench of the Hon''ble Supreme Court has held that the landlord is the best Judge of his residential requirement and if he desires to beneficially enjoy his own property, it is not for the courts to dictate him to continue to occupy such premises, but these observations are qualified with the rider that alternative accommodation occupied by him as a tenant or on any other basis is either insecure or inconvenient. Therefore, the question that required consideration by the appellate authority was whether the accommodation available with the landlords on the first floor of the building was suitable and convenient for the purpose of business they wanted to start in the shop in question located on the ground floor. The appellate authority has held that the landlords could start their business even in the shop available with them on the first floor, but then the appellate court went on to hold that the landlords could not be compelled to start their business in the premises available with them on the first floor. This approach of the appellate authority is not a correct approach. As observed by the Supreme Court in the aforestated cases, it was for the landlords to establish whether the first floor accommodation available with them was "either in secure or Inconvenient". It was expected of the landlords to establish that the vacant accommodation available with them was not suitable for the purpose for which they required the premises in respect of which action was commenced u/s 21(1)(a) of the Act.

That apart, I find substance also in the submission made by the learned Counsel for the Petitioner that the appellate authority has misconstrued the expression "on the basis of the material on record" occurring in the High Court''s judgment dated 22.8.1988. The said expression, in my opinion, does not mean "On the basis of the material already on record". The expression "on the basis of the material on record" used by the High Court in its order dated 22.8.1988, if read with the expression "after giving full opportunity to the parties", would lead to an inference that the parties were at liberty to adduce evidence having bearing on the controversy which the appellate authority was required to decide vide judgment and order dated 22.8.1988. The appellate authority, in my opinion, was not Justified in rejecting the applications 10C and 22C by order dated 29.5.1990 and the application 29C dated 23.8.1990 by order dated 30.8.1990 on the ground that it would be contrary to the intendment of the High Court''s judgment dated 22.8.1988 to allow these applications. It is true, that the appellate authority to its order dated 29.5.1990 has given three reasons for rejecting the application 10C and the first reason--the Petitioner could not explain that he had no knowledge prior to 7.4.1980 of the documents he wanted to file--is reasonably acceptable being well in accordance with the judicial principle for accepting additional evidence at the appellate stage as enshrined in Order XLI, Rule 27, Code of Civil Procedure, but the other two reasons given by the appellate authority for rejecting the application 10C are legally unsustainable being based on misreading of the High Court''s judgment and it cannot be said as to what extent the appellate court''s mind was influenced by the last two reasons given by it for rejecting the application 10C. If the order dated 29.5.1990 cannot be sustained in respect of the application 10C, it cannot be sustained in respect of the application 22C as well for the obvious reason that the application 22C has been rejected on the ground that the application 10C having been rejected, the necessity to cross-examine the witness ceased to exist. The orders dated 29.5.1990 and 30.8.1990 being erroneous vitiate the final order passed by the appellate authority in that the error committed by the appellate authority in passing the orders dated 29.5.1990 and 30.8.1990 permeates the very decisionmaking process itself which ultimately vitiates the final decision dated 10.4.1996.

In view of the above discussion, the writ petition succeeds and is allowed. The impugned orders dated 29.5.1990, 30.8.1990 and 10.4.1990 passed by the appellate authority are quashed and it is directed to decide the appeal afresh in accordance with law and in the light of the observations made in the judgment, within a period of four months from the date of receipt of a certified copy of this judgment.